Labour Law

Labour law is one of the most intricate and technical avenues of the South African Legal System.

The primary reason for this is that while there is legislation that governs it, this legislation often does not address an aspect fully, whereby a person will need to fall back on what the courts have interpreted a situation to be.

This is where another difficulty comes in, the Labour Court, whom has often stated that they are not courts of law, but courts of equity and fairness, are the final arbitrator, other than for the Supreme Court of Appeal and the Constitutional Court.  This in short means that while the law may say one thing, if in the particular circumstances an application of the law will not be fair or just, the law will not be the deciding factor in deciding who was right, or wrong.  This means, in practice, that there can be no blind adherence to a rule or regulation in the workplace, or to the governing legislation.

This reasoning is also applicable to the CCMA or Bargaining Councils, and even in the disciplinary hearings.  It is therefore always best to obtain the services of a practitioner that knows, and is familiar with the most recent court judgments, and have experience in presenting facts to the courts.

The services our firm can provide is the following:

 - General Labour Advice;

 - Employment Contracts;

 - Company Policies and Procedures;

 - Retrenchment Proceedings;

 - Assistance in Disciplinary Processes;

 - Chairing / prosecuting / defending Disciplinary Hearings;

 - Representation in the CCMA or Bargaining Council;

 - Representation in the Labour Court.

Military Law

Military Law is a hybrid between Criminal, Labour and Administrative Law.

For example, if you are a member of the SANDF, and you stand accused of theft, you may be charged in terms of the military rules, or you may be charged in terms of common law rules, or both.  The first will not result in a criminal record, where the second may well.  The ordinary criminal courts do not have jurisdiction over these matters if it is related to official capacity or state property, whereby the matter will have to be adjudicated by a Military Court.

If a member of the SANDF does not follow a particular order, for instance, refusing to accept a transfer. the member will be charged, and appear in a military court.  The grounds of justification that can be relied on are those found in criminal and labour law.  However, if found guilty, the member will not receive a criminal record, it will only be an infraction on the member's disciplinary record.  But if the member wishes to challenge the validity of the order itself, an application will need to be brought to the High Court, as the CCMA will not have jurisdiction.  The principles applicable in such an application will be that of Labour and Administrative Law.

The practitioners at our firm are well versed in the processes of the Military Courts, and can assist in this representation, or in challenging an aspect in the High Court.

© 2018 Anton Swart Attorneys Inc

CB Centre, Suite 9

75 Durham Road,

Clubview, Centurion.

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